Senate Confirms Eid to Replace Gorsuch on 10th Circuit

Colorado Supreme Court Justice Allison Eid, a former Colorado Supreme Court justice, is the third female federal appeals court judge nominated by President Trump that the Senate has confirmed this week. (AP Photo/Alex Brandon)

WASHINGTON (CN) – The Senate confirmed President Donald Trump’s choice to replace Supreme Court Justice Neil Gorsuch on the 10th Circuit on Thursday, and went on to also confirm his nominee for the Third Circuit.

They were the fourth and fifth of Trump’s judicial nominees to be confirmed by the Senate. Meanwhile, the Senate Judiciary Committee on Thursday morning unanimously approved two new U.S. attorneys.

The Senate confirmed Colorado Supreme Court Justice Allison Eid to the 10th Circuit with a 56-41 vote exactly one week after the Senate Judiciary Committee recommended her approval on a narrow party-line vote.

“Justice Eid is clearly well-qualified for the position to which she has been nominated,” Senate Majority Leader Mitch McConnell, R-Ky., said before the vote Thursday. “She is just the kind of fair-minded judge people would want hearing their case.”

Eid has served on the Colorado Supreme Court since 2006 following a stint as the state’s solicitor general from 2005 to 2006. With sterling conservative legal credentials that include clerking for Supreme Court Justice Clarence Thomas, Eid was on Trump’s short list for the Supreme Court seat that went to Gorsuch.

Eid has been a member of the conservative Federalist Society since 1988, a legal advocacy group that has taken on a prominent role in Trump’s court picks. Eid has some history of small political donations to Republicans, though her most recent donation was $250 to House of Representatives candidate Greg Walcher in 2004.

Eid told Sen. Dianne Feinstein, D-Calif., in written responses to questions submitted after he nomination hearing that she did not know why the Federalist Society and Heritage Foundation decided to recommend her for the Supreme Court short list. She said she did not have any conversations with either group about either her inclusion on the list or the 10th Circuit nomination.

Born in Seattle in 1965, Eid worked as an intern in the White House’s communications office for a year during the Reagan administration and eventually worked as a speechwriter for former Secretary of Education William Bennett.

Eid was appointed to the Colorado Supreme Court in 2006 by Republican Gov. Bill Owens and retained her seat with 74 percent of the vote in the 2008 election. Trump nominated her to the 10th Circuit in June and she appeared before the Senate Judiciary Committee for a nomination hearing in September.

Democrats spent most of that hearing launching attacks very similar to those they mounted against Gorsuch earlier this year, attempting to portray Eid as a conservative with a record of ruling against individuals in favor of business interests. For her part, Eid insisted she would only “follow the law where it takes me.”

“You take an oath to be impartial, you have to be impartial,” Eid told the Senate Judiciary Committee at her September nomination hearing. “That is a requirement.”

Sen. Dick Durbin, D-Ill., prodded Eid over a dissent she wrote in the 2015 case Westin Operator LLC v. Groh, in which Eid found the parents of a woman who was kicked out of a hotel with a group of friends for being drunk and disorderly could not sue the hotel after she suffered brain damage in a car accident while driving home. When Durbin brought up the case during the hearing, Eid defended her decision, noting the women walked by taxis on their way to the car.

The case bore a resemblance to a dissent Gorsuch penned on the 10th Circuit holding a trucker could not sue his employer after being fired for abandoning his truck to escape freezing cold temperatures.

Eid also dissented from the majority opinion in another case that found a city employee who suffered brain aneurysms after falling down the stairs on the job was entitled to compensation from the city. Eid said the decision “significantly expands” workers’ compensation law in Colorado, and did not back down from her opinion in written questions submitted after her hearing.

Feinstein also pressed Eid on a 2012 dissent arguing a Colorado court improperly redrew the state’s congressional districts. Eid told the top Democrat on the Senate Judiciary Committee in written responses to questions after her nomination hearing that she believed the court gave “little or no weight” to the legislature’s goal of limiting the disruption of current districts when redrawing lines.

Hours after confirming Eid’s nomination, the Senate confirmed Trump’s nominee for the Third Circuit by a narrow, 53-43 vote.

The new appeals court judge, Stephanos Bibas, has been a University of Pennsylvania Law School professor since 2006.

Prior to that he taught at the University of Iowa College of Law, and before that, he was a federal prosecutor in New York City.

A member of the conservative legal advocacy group the Federalist Society, Bibas clerked for Supreme Court Justice Anthony Kennedy from 1997 to 1998.

Democrats dredged up Bibas’ early days as a federal prosecutor during his confirmation process, pressing him on a case he brought in 1999 against a woman accused of stealing $7 from a cash register at the Veterans Affairs Medical Center in New York City. Democrats noted the crime could have been remedied with a fine, but that Bibas nevertheless went forward to trial.

In written answers to questions submitted after his nomination hearing, Bibas explained he was a first-year prosecutor when the case came to him. He said law enforcement believed it was part of a larger string of theft responsible for thousands of dollars missing from cash registers.

But when Bibas told his supervisor he could not connect all the thefts beyond a reasonable doubt, his supervisor told him to prosecute the $7 theft anyway. Bibas told the committee he wishes he had pushed back on this order, explaining the case was his first trial.

“As I testified at my hearing, I made a mistake, I apologized, I learned from my mistake and I have spent my career since then trying to diagnose and remedy the structural causes of such errors, including new-prosecutor syndrome, tunnel vision, jumping to conclusions, inadequate screening of cases, inadequate supervision and lack of second opinions,” Bibas wrote to Sen. Feinstein in response to questions submitted after his nomination hearing.

Democrats also objected to a 2009 paper Bibas wrote but never published that in part advocated for “non-disfiguring corporal punishment, such as electric shocks” as the best punishment for certain crimes.

Bibas explained he “workshopped” the idea over the summer of 2009 and decided to scrap it after a colleague raised the ties between corporal punishment, slavery and Jim Crow. He told the committee he realizes corporal punishment is “never” appropriate and called it “wrong and deeply offensive,” but Democrats were not satisfied.

“My fellow colleagues, this man is outside of the mainstream of American legal thinking,” Sen. Durbin said when the Judiciary Committee considered Bibas’ nomination last week. “I believe he’s outside the mainstream of conservative political thinking. Who would step forward on the Republican side and call for what this professor has called for? Who would stand up and say this man and that kind of thinking belong in a lifetime appointment on a circuit court, the Third Circuit Court.”

Meanwhile, the Senate Judiciary Committee unanimously approved two U.S. attorneys nominees on Thursday morning, one for the Middle District of North Carolina and the other for the District of Vermont.

Sen. Patrick Leahy, D-Vt., said he recommended Christina Nolan along with the state’s Republican Gov. Phil Scott and noted she would be the first woman confirmed to a U.S. attorney’s position in the state’s history.

“Prosecutors have to be outside of politics and just care for the state,” Leahy said Thursday. “She’ll be that way.”

Nolan has been a federal prosecutor in Vermont since 2010, having previously served as a state prosecutor in Massachusetts. She also worked as a white collar criminal defense attorney at the Boston firm Goodwin Proctor.

The committee also unanimously approved Matthew Martin as U.S. attorney for the Middle District of North Carolina. Currently the associate general counsel for Duke Energy, Martin spent time at the Washington law firm Covington and Burling before moving to the firm Smith Anderson Blount Dorsett Mitchell and Jernigan.